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Division of Youth and Family Services v. A.O.


October 9, 2009


On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Camden County, Docket No. FG-04-63-08.

Per curiam.



Submitted: September 16, 2009

Before Judges Cuff, Payne and Waugh.

In this appeal, we review an order terminating the parental rights of A.O., the mother of A.R.L. and A.M.L.*fn1 A.O. argues that the Division of Youth and Family Services (DYFS) failed to prove by clear and convincing evidence each element of the statutory standard. A.O. also contends that the trial judge erred by admitting an evaluation of her oldest daughter, who is not the subject of this appeal and who is not in her custody. We affirm.

A.O. is the mother of three daughters: J.U., who is not the subject of this litigation; A.R.L., born in May 2006; and A.M.L., born in October 2007. Defendant J.L. is the father of the two youngest children.

A.O. and J.L. came to the attention of DYFS on July 22, 2006, when A.O. appeared at a local hospital seeking treatment for injuries sustained in a domestic violence incident with J.L.

She brought her infant daughter, A.R.L., with her; J.L. had been arrested. Believing A.O. was under the influence of a substance, she was tested, and the results were positive for cocaine and opiates. A.O. stated that she felt she could not protect herself from J.L. A DYFS worker at the scene found A.O. incoherent. Although she was not admitted, her infant daughter was not released to her care because hospital personnel and the DYFS worker believed the child would be at risk in A.O.'s care. A.R.L. was placed in the care of the friend who brought A.O. to the hospital, and within days, she was placed with her paternal great-grandmother with whom she remains. J.U., A.O.'s oldest daughter from a prior relationship, was placed in the care of her paternal grandmother.

A.O. was referred to an out-patient drug treatment program but attended only the first session. Between July 28, 2006 and December 12, 2006, the whereabouts of A.O. and J.L. were unknown.

When she reappeared, A.O. attended one psychological evaluation. Although A.O. seemed to minimize her drug use in later clinical interviews, in a February 5, 2007 interview A.O. reported that she last used crack cocaine on February 4, 2007, and used it five times a week and daily if she could get it. One month later, on March 7, 2007, A.O. advised DYFS she was pregnant and unable to enroll in a drug treatment program. Shortly thereafter, DYFS lost contact with her, and her whereabouts were unknown until July 2007. A.O. left several messages for the caseworker, but the caseworker was never able to contact her at the number left by her.

During the period that A.O. and J.L. had no contact with DYFS, they did visit A.R.L., who resided with the paternal great-grandmother. They were dismissive of the paternal great-grandmother's request to call in advance. She reported that both A.O. and J.L. looked terrible and she thought they were living in a motel.

On July 10, 2007, A.O. and J.L. appeared in court for the first time in almost a year. At this time, the paternal great-grandmother requested, and the trial judge ordered, supervised visitation out of her home. At the same time, the court approved a permanency plan of termination of parental rights.

A.O. enrolled in a domestic violence residential program on July 15, 2007, and remained in the program until late August 2007, when she left to reside with her mother. Other services, including visitation, psychological and psychiatric evaluations, parenting skills classes, and substance abuse evaluations and treatment commenced only after November 15, 2007.

A.O. gave birth to A.M.L. on October 23, 2007. Neither A.O. nor her child tested positive for drugs at birth. The child was released from the hospital with her mother, but DYFS removed her from A.O.'s custody one week later. She, too, was placed with the paternal great-grandmother and remains in her care.

Meanwhile, DYFS filed a complaint seeking termination of the parental rights of A.O. and J.L. to A.R.L. on August 13, 2007. It amended the complaint on November 14, 2007, to include A.M.L.

In January 2008, A.O. registered for parenting classes and drug treatment. Her enrollment in both programs was interrupted by her incarceration in the county jail for twenty-five days due to unpaid parking tickets. When released on January 26, 2008, A.O. resumed drug treatment in the Sikora program, attended her psychological and bonding evaluations with Dr. Kenneth Goldberg, who testified on her behalf, and a second psychological evaluation several weeks later with Dr. Frank Schwoeri, who testified on behalf of DYFS.

Based on tests administered and a clinical interview, Dr. Schwoeri detected a significant degree of depression. A.O. exhibited signs of passive dependent traits, and she reported a generalized anxiety disorder. He described her level of emotional development as equivalent to an adolescent; A.O. was twenty-six at the time of her evaluation. He opined that people with A.O.'s profile may express firm intentions to change their behavior but their pattern tends to be persistent and the long-term prognosis is not encouraging. Her passive dependent traits indicate that she may remain in a destructive relationship. In addition, he opined that sobriety of one year is a generally accepted norm to be able to predict with some confidence that a person, such as A.O., will remain substance-free.

Dr. Goldberg found no signs of psychopathology and did not conclude that A.O. was driven to abusive relationships. Based on the information provided by A.O., he described her drug involvement as fairly minimal, although he conceded that the documents provided by A.O. "paint[] her in a somewhat more negative light than she described herself." He opined that DYFS interceded promptly and appropriately but that A.O. "functions well enough to parent children. . . . [S]he went through struggles involving education, work, housing and relationships. She dealt with single motherhood and appears to have done reasonably well with her first child." Thus, he concluded "[t]his is a workable case," and termination of parental rights was not an appropriate remedy.

The trial commenced on April 7, 2008, and concluded on April 18, 2008. At that time, A.O. had been in treatment and drug-free for three months. Judge Meléndez delivered an oral opinion on May 8, 2008. She found that DYFS established by clear and convincing evidence that A.O. had cared for A.R.L. for two months before the child was removed from her care due to her involvement in an abusive relationship and use of illegal substances that rendered her unable to care for her child. A.M.L. had been in her care for a week and was removed due to conduct during and after A.R.L. was in her care.

Judge Meléndez also found that A.O. was either unwilling or unable to eliminate the harm to her children because she failed to participate in any of the recommended services for approximately one year. As of the date of trial, she had just completed a parenting skills class and had been enrolled in a drug treatment program for three months. She had never received the recommended psychiatric evaluation or individual therapy. Moreover, she had no contact with DYFS for prolonged periods of time in 2007, and continued to maintain a relationship with her abusive partner during those periods while her child remained in the care of another. In fact, she bore another child by him. Judge Meléndez found that Dr. Goldberg minimized A.O.'s substance abuse and the magnitude of the domestic violence to which she and the child were exposed.

Judge Meléndez also credited the testimony of Dr. Schwoeri, who hesitated to offer a prognosis about A.O.'s future without substance use until she had maintained at least one year of sobriety. She also accepted his assessment that A.O. had led an unstable life for at least ten years characterized by unstable relationships, unstable housing and sporadic employment. Therefore, there was little evidence that she would be able to provide her children with the stability and protection they need.

Judge Meléndez found that DYFS made reasonable efforts to provide services that would have allowed reunification. Notably, A.O. failed to comply with virtually every service initially offered to her. It was not until a complaint for termination of parental rights had been filed, the birth and removal of her second child, and the amendment of the complaint to include her newborn that A.O. sought domestic violence counseling and then enrolled and remained in a drug treatment program.

Finally, Judge Meléndez found that A.O. is not the psychological parent of either child. She found that A.O. has a relationship with A.R.L., but the child looked to her paternal great-grandmother for stability and day-to-day nurturing. As to A.M.L., the judge accepted the opinion of Dr. Schwoeri that infants begin to form attachments at the age of six months. The judge also found that A.O. would not be able to assume responsibility for her care at that time or for the foreseeable future without risk of harm to her and her older sister. By that time, the judge found that A.M.L. would have formed a bond with her paternal great-grandmother and severance of that bond would cause harm to the child.

In conclusion, Judge Meléndez stated

As we are all acutely aware, . . . "[t]here can be no solution satisfactory to all in this kind of case. Justice to both mother and child, the desired objective, can only rarely be obtained whereas here the best interest of one is only achieved at the expense of the other. Where Courts are forced to choose between a parent's right and a child's welfare, they choose the child by virtue of their responsibility as parens patriae of all minor children to protect them from harm. D.Y.F.S. v. J.R., 174 N.J. Super. 211, 224 (App. Div. 1980) ([citing] Sorrentino [v. Family & Children's Soc'y of Elizabeth], 72 N.J. 127, 132 (1976))[, certif. denied, 185 N.J. 102 (1980)].

It is well-established that parents have a constitutionally protected right to "make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed. 2d 49, 57 (2000). In addition, this "fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State." Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed. 2d 599, 606 (1982).

But the "constitutional imperative of preserving family integrity is not absolute." Moriarty v. Bradt, 177 N.J. 84, 102 (2003), cert. denied, 540 U.S. 1177, 124 S.Ct. 1408, 158 L.Ed. 2d 78 (2004). Indeed, it is equally well-settled that the State has a parens patriae duty and obligation to protect children from harm. In re Guardianship of J.C., 129 N.J. 1, 10 (1992). Accordingly, if the State can demonstrate by clear and convincing evidence, Santosky, supra, 455 U.S. at 747-48, 102 S.Ct. at 1391-92, 71 L.Ed. 2d at 603, that a child's physical or mental health would be jeopardized by continuance of the parent-child relationship, it may petition the court for dissolution of parental rights. N.J. Div. of Youth & Family Servs. v. A.W., 103 N.J. 591, 600 (1986).

N.J.S.A. 30:4C-15.1 governs termination of parental rights and is referred to as the best interests of the child standard. When DYFS elects to pursue this course, it must establish by clear and convincing evidence

(1) The child's safety, heath or development has been or will continue to be endangered by the parental relationship;

(2) The parent is unwilling or unable to eliminate the harm facing the child or is unable or unwilling to provide a safe and stable home for the child and the delay or permanent placement will add to the harm. Such harm may include evidence that separating the child from his foster parents would cause serious and enduring emotional or psychological harm to the child;

(3) The division has made reasonable efforts to provide services to help the parent correct the circumstances which led to the child's placement outside the home and the court has considered alternatives to termination of parental rights; and

(4) Termination of parental rights will not do more harm than good.

[N.J.S.A. 30:4C-15.1a(1)-(4).]

This statutory standard is "an integrated multi-element test that must be applied to determine whether termination of parental rights is in the best interests of the child." In re Guardianship of D.M.H., 161 N.J. 365, 375 (1999). Stated differently, "the four criteria enumerated in the best interests standard are not discrete and separate; they relate to and overlap with one another to provide a comprehensive standard that identifies a child's best interests." In re Guardianship of K.H.O., 161 N.J. 337, 348 (1999).

As an appellate tribunal, our standard of review is limited. This court reviews the record to determine whether the findings are supported by substantial credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We also accord considerable deference to a trial judge's credibility determinations. Cesare, supra, 154 N.J. at 412 (citing In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997)). Thus, if the facts are supported by the evidence, this court should not disturb those findings. Rova Farms, supra, 65 N.J. at 484. In addition, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Cesare, supra, 154 N.J. at 413. However, "[a] trial court's interpretation of the law and legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted). It is well established that a trial court's conclusions of law are subject to plenary review. Lobiando v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

We have canvassed the record in its entirety, as we are required to do, and find no basis to disturb the order terminating the parental rights of A.O. to A.M.L. and A.R.L. A.O. has been unable to provide the stability, emotional and financial support her daughters require. It is commendable that she commenced drug treatment in February 2008 and remained abstinent for three months at the time of trial and terminated her abusive relationship with J.L. in the fall of 2007. Nevertheless, the choices made by A.O. and her behavior interfered with her ability to parent these children. A.R.L. remained in her custody only two months; A.M.L. for only one week. In the meantime, they have been allowed to look to another for all of their needs. In short, we conclude that the findings of fact are well-supported by the record and that the judge identified the relevant law and properly applied it to the facts as found.

A.O.'s contention that the trial judge erred in considering an evaluation of her oldest daughter, who is not a subject of this litigation, is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We, therefore, affirm the May 8, 2008 order terminating A.O.'s parental rights to A.M.L. and A.R.L.


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